3 Things Employers Need to Know About Drug Testing Where Marijuana is Legal

Legalization of marijuana, either medically or even recreationally, has been gaining ground year after year. Unlike other drugs, both legal like opiates, and illegal, like heroin and cocaine, the use of marijuana is spread across wide sections of American society.

But what about the negative impact of marijuana in the workplace? While cannabis laws continue to become less restrictive, it puts employers in a tough position. There’s no denying the fact that use of marijuana is fraught with risks, including workplace injuries, DUI, reduced productivity, and increased absenteeism and turnover. Most employers in states where marijuana is legal are misinformed about their rights as employers, and as a result, many mistakenly believe that they cannot conduct workplace drug testing. Fortunately, this is false.

“In regards to marijuana, we have federal law, each state has their own local laws—many of which have changed dramatically in recent years, and then, of course, we countless internet rumors, which range from plausible to ridiculous. So it’s understandable that both employers and employees are confused about the legalities of drug testing in states where marijuana is legal.”

Employees who are under the influence of marijuana don’t only put their own lives at risk—they also put the lives of everyone else around them at risk. This is especially true where the use of heavy machinery, power tools, and dangerous chemicals are common, such as While drug testing for marijuana may sound like an expensive and time-consuming task, it usually requires far less money or time than employers anticipate, and more importantly, can dramatically improve workplace safety and productivity..

But before you gear up to implement a drug testing program, here are three things you need to know as an employer:

#1. You can still drug test for marijuana even in states where it’s legal

Many employers are surprised to learn that in states where it’s legal to transport, possess or use marijuana, employers can still conduct drug testing.

Federal courts have repeatedly (and rightfully) upheld that because employers are responsible for the safety of their workers and customers in the workplace, they have the grounds to conduct random, reasonable suspicion, or post-accident drug testing, to ensure the safety of everyone in the workplace.

Marijuana is still illegal at the federal level even though it may have been decriminalized and legalized at the state level. Under the Controlled Substances Act, Title 21 U.S.C. § 811, marijuana is still classified as a Schedule 1 drug, like methamphetamine and cocaine because it’s a highly addictive and dangerous drug with no medicinal value.

#2. You must have and follow a written drug testing policy

Failing to provide and follow a well-documented drug testing policy could land you in court on charges of discrimination.

Your policy should be crystal clear on details such as what you expect from your employees and/or contractors, criteria for drug testing (random, post-accident, reasonable suspicion, etc.), actions that will be taken by the employer in the event of a failed drug test. It should be available for review by employees, and should be clearly communicated to them upon its implementation or their hiring, and they should be immediately informed of any changes.

Stress the need for workplace safety, health and productivity. More importantly, provide your HR managers adequate training so that they’re fully capable of dealing with all aspects of your drug testing program.

#3. There are specific guidelines as to how and when you can conduct drug testing

Public sector organizations and businesses that are subject to federal regulations, such as the Department of Transportation (DOT), may need to drug test their employees according to very specific criteria. However, most private companies are not bound by any specific drug testing laws.

That doesn’t mean, however, that private companies can simply conduct drug testing on a whim. There are specific criteria that would warrant a drug test—as part of a formal drug testing policy, such as when first offering conditional employment, random drug testing, and immediately following a workplace accident, for example. Reasonable suspicion is another case, and here, rigid adherence to objective criteria is especially important.

Conclusion

With marijuana use becoming more common, you, as an employer, can and should take additional steps to ensure a drug-free workplace, both for the safety of your employees and your customers..

In doing so, it’s important to follow any state and federal laws, but also to implement and follow your own drug testing policy, which protects your company from false claims of discrimination by disgruntled former employees who have been fired for drug use.

You can do this even in states where marijuana is legal, and often, there is less time and cost involved than you might think. In nearly all cases, the positive return on investment from increased productivity, reduced workplace accidents, and reduced workers’ compensation insurance makes it a solid investment.